Tutela jurisdicional de urgência: regime jurídico único das tutelas cautelar e antecipada

Abstract

Objective: To highlight deep similitudes between anticipatory and protective injunctions, stepping beyond the mere fungibility between the two, rather acknowledging them as from a same gendered species (urgent relief) thus advocating for the adoption of a single legal regime. Justification and Hypothesis: The extremely important time needed to exercise due legal processing and maturation of the process added the delay yielded from a lack of judicial structure end it up bringing losses to in-court discussions regarding material rights, hence the strong tendency for urgent relief generalization. Urgent relief externalizes itself throughout two techniques: protective relief and anticipatory injunction. There are several tangible points nevertheless one single difference between them: the way each one fulfills the duty of withholding the bads of delay (the protective one protects the useful result which shall be sought under other process whereas the anticipatory injunction speeds up the fruition of the final providing effects). Although different in their way of action it is undeniable that both have the same function of attacking the injuries caused by process' duration plus both aim to assure effectiveness from jurisdictional relief. Therefore why not treat them the same, legal-wise? Theoretical-methodological aspects: Under Chapter I we have explained the process' constitutional model and the most relevant principles to urgent relief; under Chapter II we have conceptualized, defined and contextualized the urgent relief gender; under Chapter III we have together analyzed its species (urgent relief and anticipatory injunction) and established their many features, aiming to highlight and demonstrate their countless tangible points; under Chapter IV we have brought some topics in regard of foreign law, emphasizing the equal treatment for urgent relief and anticipatory injunction found in those countries; under Chapter V at the light of premises defined in the preceding chapters we have sought to demonstrate, under several aspects, the application of a single legal regime for urgent relieves; and, at last, under Chapter VI we have made some considerations in regard of lege ferenda. Results: A series of consequences have been by us purged from the processing system which worth both for protective relief as well as for anticipatory injunction, with equal weight and measure, as foreseen under incise I of Art. 273 of the CPC, from which we note: (i) the need for preserving a relation between proportionality and irreversibility; (ii) the acknowledgment demanded from both for its concession, the presence of fumus boni juris and the periculum in mora, being the latter the "pointer of the scale of justice" (―seesaw theory‖); (iii) the broad application of the dispositions contained in Book III of the CPC (regarding the protective) for the anticipatory injunction and vice-versa, opening doors for a judicial action without hearing both parties, a preceding anticipatory injunction, an incidental protective relief needless of proposing a protective process, among other possibilities